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Last Updated: 05/08/2012The Intersection of Law and Politics: The Case of the United States and the International Criminal Court
Mathew G. Ituma
Researcher Mathew Ituma takes us through the story of the United States' tentative support for the International Criminal Court under Clinton and its eventual "unsigning" under Bush, emphasizing the fundamental tension between national (in this case congressional) politics and international justice.
Key words: Rome Statutes, International criminal court, justice, law, politics.
The International Criminal Court as a site of public affairs is a magnet for political and legal participation. This participation often oversteps the geographical frontiers of sovereign states. Following the signing of the Rome Statues in 1998 by the then US President Bill Clinton and the subsequent birth of the International Criminal Court (ICC) in 2002, an international legal structure based on the framework of the US Constitution was established. While Clinton argued that the US should be given a chance to assess the benefit of choosing whether it wanted to be under the ICC jurisdiction, the support of the senate on this matter at that time was unclear. This lack of clarity and ambiguity led to the “unsigning” of the US from ICC during the Bush Administration following a congressional debate to pull out. The US withdrawal from ICC emanated from congressional debates that were anchored on the idea that ICC is unconstitutional, contending that ICC places itself above the US justice and court system. The US Congress also claimed that some clauses of the Rome Statues were open to subjective interpretation by member nations and could jeopardize US national interests. Many congressional members argued that ICC duplicates the roles of the United Nations.
This essay examines the contradictions that dog the US and its legal position on crimes against humanity as spelt out by the Rome Statues in general and ICC in particular. It explores the political narrative that obscures the international Criminal Courts’ authority in relation to the US, effectively framing it as a toothless “bulldog” even though its legal structure mirrors the US Constitution. Specifically, it focuses on the inconspicuous boundary between international law and politics while at the same time positioning the US as the centerpiece of this controversy especially regarding its “unsigning” of the Rome statutes. To do this, I will first discuss how ICC came to life and how it developed; I will proceed to discuss the US involvement in the formation of ICC and the implications of its “unsigning” of the Rome Statutes. Finally, I will discuss how its withdrawal affected its image.
As a result of the July 17, 1998 adoption of the Rome Statutes by the United Nations diplomatic conference sitting in Rome, the International Criminal Court, headquartered at the Hague in the Netherlands, was born. The one hundred and sixty diplomats in this conference established an independent international; and intergovernmental court that would try crimes against humanity. The United Nations was; and still remains the centerpiece of this arrangement to ensure that suspects of international crimes are tried. While the relationship between the United Nations and the United States is clear, that of the United States and the International Criminal Court remains nebulous. Although it is not clear if the Unites States of America was represented at the Rome diplomatic conference, it is clear that its interests were represented by the United Nations.
It was not until December 31, 2000 that the U.S. became a member of ICC by signing the Rome Treaty even though Bill Clinton, the US President at that time expressed his concerns about the treaty. He is said to have had some reservations regarding its imperfection. This discontent triggered congressional debates asking the exiting president to pull out the country from the treaty’s commitments. Before the Rome Statues was fully operationalized in July 2002, the United Nations was already dealing with a withdrawal notice from the US that had been executed about a month earlier on May 6, 2002, and only about one and half years after signing the treaty in December 2000 by the US. The withdrawal notice in part stated that “the US does not intend to become a party to The Rome Statute” (Arieff et al, 2011).
George W. Bush, echoing the reserved sentiments of his predecessor, Bill Clinton’s feelings about the US inclusion into ICC and the possibilities of exposing and subjecting the US military and citizens under the jurisdiction of ICC, “unsigned” the Rome Statutes. The congressional debates leading to this withdrawal were anchored on the idea that the US legislators wanted all their suspected nationals to be dealt with by the US legal system as opposed to giving them to ICC for trial. They wanted the US to be able to investigate and try its own people rather than subjecting them to an international criminal justice system that they had little control over.
Fearing infusion of biased political motives in prosecution and the due process, congress argued that ICC lacks the mechanisms to ensure fair trial. It cited some variations and potential danger in interpreting the Rome Statutes in relation to the legal process but more gravely, there was a concern about its superiority over US law. They maintained that features such as “the US common law system, US constitutional protections for criminal defendants, and the U.S. jury” (Stompor 2006) greatly vary from the meaning and content of both the Rome Statutes and laws of all other member states and this could be misunderstood and misinterpreted, causing a likely stalemate in legal decisions involving any would- be US suspect on trial at the Hague. Congress also emphasized that “aggression”, as a crime was not fully defined by the Rome statutes and clarifications for conditions of trial in transgression crimes needed to be elaborated. It also posited that “conditions for the exercise of jurisdiction by the ICC could bring the court into conflict with the Security Council and the UN charter” (Mayerfeld, 2003).
Along the lines of accountability, there was the criticism that the prosecutor was stateless in terms of his span of influence, which claimed that he answered to no particular state and was likely to be influenced by the politics that characterize the international system. Some of the other leading contentious clauses that led to the “unsigning” of US from ICC pertain to the courts’ autonomy and its lack of checks and balances. Article 15 of the Rome Statutes for instance involves prosecution of crimes. It states that “the prosecutor can proceed with an investigation on his or her own initiative with the agreement of two judges of a three-judge panel. The prosecutor is not responsible to an elected body or to the UN Security Council” (Mayerfeld, 2003).
It is due to all these contradictions that during his initial term in office, and beaming with confidence, President Bush became categorically defensive to ICC. He approved the calling back of the “signature” that bound the US to the Rome Statutes. He also approved the declaration by the US State Department stating that America was no longer bound by its own signature on this treaty.
The “unsigining” of the Rome Statutes was the climax of the congressional debates aimed at pulling out the US from ICC. The US, during the Bush administration, implemented the immunity bilateral agreements as outlined in Article 98 of the Rome Statues, stating that parties to those agreements will exempt US citizens from possible surrender to ICC in case they were suspected of crimes against humanity. In a sense, these bilateral agreements did not legitimize the US withdrawal from ICC but they also weakened its bargaining power on issues relating to international justice and specifically on issues directly related to the US involvement in human rights violations. These legal and political claims seemed to justify and amplify the narrative leading to the US withdrawal from ICC even though, as the world’s leading power, the US had a moral obligation to ensure peace, security and justice in the world system. The US promised to continue working with member ICC states and that became the center of the controversy.
The back-tracking to this commitment got momentum when the US begun to argue that, there were possibly other ways to handle international crimes. One such method was “home trials” instead of nations giving up their right to try their own citizens by forwarding them to ICC. The US, through congress, held that “home trials” were more effective than “international trials” and that, the international community should come to help in situations where there were no mechanisms to execute “home trials.” It confirmed that, where there was a will to prosecute suspected criminals but there was no mechanism to do so, the UN Security Council would intervene to create international structures such as hybrid courts to conduct local trials.
This effectively demonstrated the influence and superiority of politics over the rule of law. Congressional debates on the US withdrawal from ICC therefore revolved around the intersection of law and politics. While they questioned the legal standing of ICC in relation to the US justice system, the debates were also heavily tilted towards the US domestic policy and intensely opposed to international court systems in the likeness of ICC.
This was the genesis of the tensions between member states of ICC and the US, creating a discourse that bridged law and politics. Even as the differences in opinion between the US and other ICC member states continued to soar, congressional debates about the US pull-out from ICC became more blurred, the US rhetorically continued to reaffirm its commitment to international justice and promised to cooperate with ICC member states. But according to article 98 bilateral agreements signed between the US and specific countries, some of who were members of ICC, the US had secured exemptions from possible prosecution by ICC by barring it from “prosecuting someone located within an ICC member state if doing so would cause the member state to violate the terms of other bilateral or multilateral treaties to which it may be a party” (Raj, 2008). A cursory review of the Article 98 agreements reveals that they involve isolated immunity agreements classified as bilateral agreements between the US and specific nations to protect US nationals outside the US soil from possible prosecution when they are suspected of international crimes.
In the quest for justice and accountability on crimes against humanity, ICC member states started to question the position of the US on the Rome Statues and the legal jurisdiction of ICC in relation to US suspects of international crimes. Member states still argue that ICC is a pedigree of the US Constitution but the U.S. technically abandoned a baby that it conceived and bore. They also question the rationality of its “motherhood” that seems to leave ICC in an orphanage. Further, they blame the US congress for helping the progenitor to obliterate its own baby by suffocating its only source of life through limiting the US interaction with ICC in matters of crime and justice. They also claim that the US Congress approved the freezing of financial and military aid to states that did not sign an indemnity clause in the fashion of bilateral immunity agreements exempting US nationals from being held accountable for crimes committed outside its national frontiers.
To answer the questions on motherhood, the US reminded its critics that as a committed non-member, it supports the Rome Statues. It cited several previous efforts to this commitment and gave examples of how it was central in establishing the Rwandan and Yugoslavia’s International Criminal Tribunals as well as the Sierra Leones’ special court proceedings on Foday Sankoh and his sympathizers. It also pointed to the 2002 Slobodan Milosevic trial for crimes against humanity, even though Milosevic passed away in his jail cell on March 11, 2006 before his verdict was delivered. These were just a few but powerful examples that answered the voices of criticism and helped in the grounding and legitimization of the US withdrawal from ICC, while at the same time reasserting its commitment to the core principles of the Rome Statutes, something that was perceived as a case of double standards loaded with legal and political promiscuity.
Although it is still not easy to uncover the underlying motives for its withdrawal, the political environment surrounding the congressional debates on one hand; and the need to uphold international justice and accountability for crimes on the other, illuminates the intersection of law and politics. Unwilling to reply to questions about this intersection and fearing for uncovering of the withdrawal motive, the US argues that it does not condone crimes committed by its citizens everywhere. It contends that its citizens will be held accountable for crimes committed outside its boundaries but the trial of their own citizens will be done using the rubric of the US justice system, putting its credibility and its standpoint on crimes against humanity in the spotlight.
The credibility of the US in international politics seems to be weakening with its withdrawal from ICC and it’s unsigning of the Rome Statutes in relation to its moral, legal and political standing on international crimes. The US position on the rule of law, specifically its legal standing on crimes against humanity, is being tested and the Rome Statutes have been used as the litmus test. The challenge has been to define the boundary between politics and law on issues regarding the implementation and the adjudication of ICC when the US has specific bilateral agreements that exempt it from the jurisdiction of ICC.
In the process and environment that surrounds this contradiction, ICC has been framed by its critics as a toothless bulldog because it has dropped some cases, for unknown reasons, that could possibly be classified by the Rome Statutes as crimes against humanity. Such cases include that of the Darfur rebel commander who was dismissed “because the ICC prosecutor could not secure any convictions” (American Society of International law, 2009). It has also failed to arrest major suspects such as President Bashir of Sudan even after it issued an arrest warrant in 2009, further injuring the legal and jurisdictional capabilities of ICC, because the Sudanese government failed to recognize ICC’s jurisdiction over this matter. To further stunt the development of the neophyte ICC, the UN, through the 2005 Commission of inquiry on Bashir argued that the legal framing of the violence in Darfur as genocide was an overstatement, although it conceded that crimes against humanity were committed, thus tragically left a “hot potato” in the helpless hands of ICC, and without the promised hybrid mechanisms to facilitate “home trial” in the Sudanese genocide. To date, Bashir remains free. In effect, the US and the UN Security Council’s images suffered because of he legal interpretation of this case, yet ICC’s legal structure mirrors the US Constitution and the UN charter on international crimes.
The framing of ICC as ineffective is illustrated by the many challenges it now faces in the prosecution of perpetrators of the systemic violence and atrocities. It is slowly succumbing to political pressures in the absence of viable legal alternatives in trying international criminals. Specifically, it is facing problems in establishing alternative methods and hybrid courts for trial, thus raising fundamental questions on its capability to uphold the rule of law free of political theatrics, further blurring the boundary between the US belief in accountability for crimes against humanity on one hand, and its politically loaded opposition to the ICC on the other.
This US withdrawal from ICC and the Rome Statutes technically weakened US leverage as the leading super power, especially on matters relating to human rights and specifically on crimes against humanity. The debate on the US withdrawal from the ICC became volatile when the focus on international crimes and justice shifted from crimes against humanity such as genocide to the war against terrorism. This effectively changes the narrative of prosecutable crimes to include terrorism, thereby giving the US the ideological and political basis for holding and singlehandedly prosecuting terror suspects without reference to ICC. Since the US has lost the moral authority to try individuals suspected to have committed international crimes against humanity and genocide, it is conceivable that it has continued to hold crime suspects in places claimed to be out of reach of the US justice system such as Guantanamo Bay, Cuba, where military trials of detainees allegedly responsible for the 9/11 terrorist attacks are currently underway.
Students of history remind us that the International Court of Justice (ICJ), an arm of the United Nations that was supposed to act as a world court with the dual jurisdictions of decision-making and dispute resolution using international law followed the same path as the one currently travelled by ICC and did not achieve much, firstly due to the structure of United Nations that is dominantly controlled the security council, and secondly due to the influential position of the United States in the UN with a veto vote on matters regarding international peace and justice. There is no evidence suggesting failures so far or pointing to the success of the ICC at the exclusion of the US, but the value of the international justice system remains unmistakably weak, in structure, context, and jurisdiction, the same today for ICC as it was for ICJ in 1945.
Seemingly to the US, giving ICC the mandate to prosecute suspects is tantamount to placing a superior court above the US court system, something that the congressional debates of 2000 constantly opposed. It is therefore safe to argue that the congressional political interference with legal matters arising from the need to withdrawal from the Rome Statues and ICC constitutes the clear intersection of law and politics.
In sum, understanding the unclear boundary between the legal and political spheres in reference to the ICC and the position of the US on the Rome Statues illuminates our understanding of the tensions that exist in the international justice system as they relate to international crimes. It also helps us to grasp the political rhetoric that surrounds the framing of crimes against humanity and is critical in sieving the political pebbles from legal matters in order to effectively tame the political debates that threaten international justice. Understanding of this overlap between law and politics on one hand; and states and ICC’s jurisdiction on the other hand, helps us to understand the tensions that characterize the relations between member states of the Rome Statutes and the US. Citing this contradiction and the clear conflict of interests from the onset, the US realized that the ICC was after all an enigmatic conception, cunningly petitioned for withdrawal, and consequently “unsigned” the Rome statutes on May 6, 2002.
Arieff, A., Margesson, R., Browne, M. A., and Weed, M. C. (2011 July 22). International Criminal Court cases in Africa: Status and policy issues (CRS Report for Congress RL34665). Retrieved from the Federation of American Scientists Congressional Research Service Reports website: http://www.fas.org/sgp/crs/row/RL34665.pdf
American Society of International law.(2009 Jan).United States eases opposition to International Criminal Court, opposes efforts to thwart ICC proceedings involving Darfur, The American Journal of International Law ,Vol. 103, No. 1, p. 152-154 website: http://www.jstor.org/stable/20456738
LeBor, Adam (July 12, 2008). An endless contest between peace and justice and justice has the upper hand analysis. The Times, (London, England) p.49
Mayerfeld Jamie (2003). Who shall be judged?: The United States, The international Criminal Court, and the Global enforcement of Human Rights. Human Rights Quarterly, 25, 93-129
Purohit Raj. (2008 June 3). Article 98/ bilateral immunity agreements. Foreign Policy Association. Retrieved from http://foreignpolicyblogs.com/2008/06/03/article-98-bilateral-immunity-agreements/
Richardson Bill (2001 August 21). Americas Interest in an International Court. New York Times
Simons, M (2002). Without Fanfare or Cases, International Court sets up. New York Times
Stompor John. (Winter 2006). The Darfur Dilemma: U.S. Policy towards the ICC. Georgetown Journal of International Affairs; Vol.71, p.111
The author is a Ph.D. student at the School of Humanities and Social Sciences in the Department of Conflict Analysis and Dispute Resolution at Nova Southeastern University, Fort Lauderdale, FL, USA.